Equity-Based Decision-Making and the Fair and Equitable Treatment Standard: Lessons From the Argentine Investment Disputes - Part II

In Part II, of this two-part article, the author continues to highlight the difficulties and challenges associated with equity-based decision-making. The many investment disputes presented before ICSID, following the Argentine economic crisis from 1999 onwards, and the consequent number of awards and decisions on them clearly point to the continuing dilemma. The author has selected 5 awards and decisions, and related annulments in 3 of those cases, based on the application of the FET standard in the 1991 US-Argentine BIT, to illustrate the seeming contradictions, inconsistency and subjective opinions which can be symptomatic of equity-based decision-making. To assist in consistent equity-based decision-making, the author proposes the diligent consideration of competing factors relevant in each investment dispute, on the basis of proportionality, reasonableness and relevance. With continuous practice, these factors could then develop, in time, into accepted standards under international law and perhaps incorporated into the next generation of BITs.